USCIS Issues Memorandum on Eligibility for H-1B Cap Exemption Under American Competitiveness in the Twenty-First Century Act (AC21)

June 8, 2006

USCIS Associate Director for Domestic Operations, Mike Aytes, issued a memorandum, dated June 6, 2006, providing guidance on eligibility for exemptions to the H-1B cap based on employment or an offer of employment at an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization or a governmental research organization as provided by Section 103 of AC21.

With respect to the interpretation of the statutory language “employed (or
has received an offer of employment) at,” the memorandum clarifies that USCIS
will allow third-party petitioners — petitioners on behalf of an H-1B worker
who will work at a qualifying institution but is or will be employed by the
third-party petitioner — to claim exemption on behalf of a beneficiary,
provided the petitioner establishes a logical nexus between the work performed
predominantly by the beneficiary and the normal, primary or essential work
performed by the qualifying institution (higher education or nonprofit or
governmental research). The memorandum also provides guidance on the meaning of
the statutory phrases “institution of higher education or related or affiliated
nonprofit entity” and “nonprofit research organization or a governmental
research organization.”

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